Why Wills are a key tool in your estate plan
Losing a loved one is one of the most challenging times in a person’s life. It not only presents emotional challenges for the bereaved, it can often present the practical challenge of dealing with the financial affairs of that loved one.
When a person passes without an estate plan, it compounds the impact of their passing on their family by making it harder and more expensive for families to receive property through inheritance.
to draft your Will
Wills are a key tool in your estate plan.
Drafting a Will is quick and inexpensive, and having a Will helps your family save money and avoid legal burdens after your passing, by including several standard features:
You specifically name your heirs/beneficiaries.
If you do not have a Will, your heirs are named by state law (discussed here). You might want to name different heirs -- fortunately, you have an absolute right to leave your estate to whomever you want, but you need to draft a Will to make it happen.
Having a Will also makes it less expensive for your family to move through probate court, because it eliminates the legal requirement that multiple witnesses be brought to court to testify about who the members of your family are.
You name your Executor.
An executor is the person responsible for winding down the decedent’s affairs, with tasks including gathering the assets of the estate, liquidating them if necessary, and distributing them properly to the estate's heirs
Without a Will, a court must decide who to appoint to do this, and the potential candidates sometimes fight in court about who should receive that appointment. Not every probate case resembles an episode of Succession, but there is a risk of tension between family members when money and inheritance are at stake. Naming an Executor with your Will nips this potential tension in the bud.
You can authorize your Executor to be an "Independent Executor" and to serve without paying an expensive fee for a bond.
Without a Will, it is assumed the Executor will serve as a "Dependent" Executor. This is much more expensive for families than an estate being handled by an Independently Executor, because the Dependent Executor must request a judge's approval for every financial transaction performed by the estate, and the only way to request that approval is by paying an attorney to submit the request.
In your Will, however, you can appoint an Independent Executor who is not subject to the same level of tedious oversight by a court. Instead, an Independent Executor is only required to report key pieces of information to the court at certain key moments. That means a person's family can spend far, far less money on legal fees.
Similarly, Texas law also includes a default requirement that your administrator or executor must submit a bond -- which they must purchase from an insurance company for a large fee. People typically draft their Will to waive that requirement, to spare their family the burden of paying that additional fee.
You can designate a person to care for any minor children you may leave behind.
Normally we cannot predict the date of our passing, and if you have children, there is a chance one or more of them may still be minors. It is also possible that you may experience an injury or illness that makes you unable to care for them.
The law allows you to include a designation of your preferred guardian for your children in your Will. The guardian role comes into play if you pass or become incapacitated while your child is a minor, and the child’s other parent is not alive and available to take care of them. In that event, a court would normally name someone to be the child’s guardian, and it will give heavy preference to a person you identify in your as your chosen guardian.
There are additional steps you can take to try to avoid court entirely.
It is wise to use all the standard tools for estate planning, to minimize the legal and financial burdens your family may face as a result your passing. In addition to a will, tools like Transfer on Death Deeds (TODD) can be extremely useful -- however, it is difficult to be certain they will transfer all of your important property. Even with a tool like a TODD in place, it is still important to have a Will as a catch-all for any property matters that remain otherwise unaddressed.
The core of ACLC’s mission is to make legal services radically more affordable, so that everyone can have access to justice. We charge sliding-scale fees based on our clients' income. If you need help, you can schedule an appointment online today.
